Duncan Toys Company

Affiliate AgreementEffective Date: April 11, 2024Primary Website: duncantoys.comTHE AGREEMENT: This Affiliate Agreement (hereinafter called the "Agreement") is provided bythe following organization, hereinafter referred to as "Company": Duncan Toys Company, LLC.Our primary website is located at the address listed above. The Agreement is a legal documentbetween you and the Company that describes the affiliate relationship we are entering into.This Agreement covers your responsibilities as an affiliate and our responsibilities to you. Pleaseensure you read and understand the entirety of this document, as well as have a lawyer'sassistance if you desire, because each of the terms of this Agreement are important to ourworking relationship.1) DEFINITIONSThe parties referred to in this Agreement shall be defined as follows:a) Company, Us, We: As we describe above, we'll be referred to as the Company. Us, we,our, ours and other first-person pronouns will also refer to the Company, as well as allemployees or legal agents of the Company.b) You, the Affiliate: You will be referred to as the "Affiliate." You'll also be referred tothroughout this Agreement with second-person pronouns such as You, Your, or Yours.c) Parties: Collectively, the parties to this Agreement (the Company and You) will bereferred to as "Parties" or individually as "Party."d) Affiliate Program: The program we've set up for our affiliates as described in thisAgreement.e) Affiliate Application: The fully completed form which must be provided to us forconsideration of your inclusion in the Affiliate Program.f) Website: The primary website we've noted above will be referred to as Website.2) ASSENT & ACCEPTANCEBy submitting an application to our Affiliate Program, you warrant that you have read andreviewed this Agreement and that you agree to be bound by it. If you do not agree to be boundby this Agreement, please leave the website immediately and do not submit an application to2our Affiliate Program. This Agreement specifically incorporates by reference any Terms ofConditions, Privacy Policies, End-User License Agreements, or other legal documents which wemay have on our website.3) AGE RESTRICTIONYou must be at least eighteen (18) years of age to join our Affiliate Program or use this Website.By submitting an application to our Affiliate Program, you represent and warrant that you are atleast 18 years of age and may legally agree to this Agreement. The Company assumes noresponsibility or liability for any misrepresentation of your age.4) PROGRAM SIGN-UPIn order to sign up for our Affiliate Program, you will first be asked to submit an AffiliateApplication to join. The Affiliate Application may be found at the following website:www.shareasale.com.Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Program. Weevaluate each and every application and are the sole and exclusive decision-makers on Affiliateacceptance. If we choose not to allow your inclusion in the Affiliate Program, we will attempt tonotify you in a reasonable manner. If you do not hear from us within a reasonable time frame,please consider your application rejected. We are not obligated to provide you any explanationfor your rejection, but please be advised we may reject applicants for any reason or manner,including but not limited to a website or social media page which violates our Acceptable UsePolicy.If your Affiliate Application is rejected, you may not reapply. If your Affiliate Application isaccepted, each of the terms and conditions in this Agreement apply to your participation. Wemay also ask for additional information to complete your Affiliate Application or for you toundertake additional steps to ensure eligibility in the Affiliate Program.5) NON-EXCLUSIVITYThis Agreement does not create an exclusive relationship between you and us. You are free towork with similar affiliate program providers in any category. This agreement imposes norestrictions on us to work with any individual or company we may choose.6) AFFILIATE PROGRAMAfter your acceptance in the Affiliate Program, you must ensure your account is set upthoroughly, including specific payout information and location (such as a bank or online accountwhich we may use to post payment).3Please be advised the below is a general description of the Affiliate Program. Everythingcontained in this subsection is subject to the specific terms and conditions throughout the restof this Agreement.We will provide you with a specific link or links which correspond to certain products we areoffering for sale (collectively, the "Link"). The Link will be keyed to your identity and will sendonline users to the Company's website or websites. You hereby agree to fully cooperate with usregarding the Link and that you will explicitly comply with all of the terms of this Agreement forthe promotion of the Link at all times. We may modify the specific link or links and will notifyyou if we do so. You agree to only use links which are prior approved by us and to display theLink prominently on your website or social media page, as described in your Affiliate Application(collectively, the "Affiliate Site").Each time a user clicks through the Link posted on the Affiliate Site and completes the sale ofthe product or service, and we determine it is a Qualified Purchase, as described below, you willbe eligible to receive a percentage of the sale equal to the amount stated in the applicationprocess or another amount as may be determined from time to time in our sole discretion andas updated on shareasale.com by us.7) SPECIFIC TERMS APPLICABLEWe will determine whether payout is permissible in our sole and exclusive discretion. Wereserve the right to reject clicks and/or sales that do not comply with the terms of thisAgreement.Processing and fulfillment of orders will be our responsibility. We will also provide real-timedata regarding your account with us through the portal on which you log into the website.As described above, in order to be eligible for payout, user purchases must be "QualifiedPurchases." Qualified Purchases:a) Must not be referred by any other partner or affiliate links of the Company (in otherwords, Qualified Purchases are only available through your specific Affiliate Link;b) May not be purchased by an already-existing partner or affiliate of the Company;c) May not be purchased prior to the Affiliate joining the Affiliate Program;d) May only be purchased through a properly-tracking Affiliate Link;e) May not be purchased by a customer in violation of any of our legal terms or AcceptableUse Policy;f) May not be fraudulent in any way, in the Company's sole and exclusive discretion;4g) May not have been induced by the Affiliate offering the customer any coupons ordiscounts;8) PAYOUT INFORMATIONPayouts will only be available when the Company has your current address information as wellas accounting and tax documentation. You will be asked to submit a W8/W9 tax form.Accounting information may include the routing and account number of a bank where you wishto post a direct deposit or may include an email address for an online method of payment.Currently, the Company employs the following methods of payout:ACH Direct Deposit or CheckFor any changes in your address or accounting information, you must notify us immediately andwe will endeavor to make the changes to your payout information as soon as possible.Payouts will be available the month or period after they accrue. For example, if payouts aremade every 15 days, an entire 15 day period must finish for the payout of that period to beavailable in the following period.We explicitly reserve the right to change payout information in our sole and exclusive discretion.If we do so, you will be notified.For any disputes as to payout, the Company must be notified within thirty days of your receiptof the payout. We will review each dispute notification as well as the underlying payouttransaction to which it is related. Disputes filed after thirty days of payout will not be addressed.9) REPORTSYou may log into your account with us to review reports related to your affiliation, such aspayout reports and Qualified Click and/or Purchase information. Please be advised however,that not all listed qualifying clicks and/or purchases have been fully reviewed for accuracy in thereports viewable by you in real-time and therefore may be subject to change prior to payout.10) TERM, TERMINATION & SUSPENSIONThe term of this Agreement will begin when we accept you into the Affiliate Program. It can beterminated by either Party at any time with or without cause.You may only earn payouts as long as you are an Affiliate in good standing during the term. Ifyou terminate this Agreement with us, you will qualify to receive payouts earned prior to thedate of termination.5If you fail to follow the terms of this Agreement or any other legal terms we have postedanywhere on our website or websites, you forfeit all rights, including the right to any unclaimedpayout.We specifically reserve the right to terminate this Agreement if you violate any of the termsoutlined herein, including, but not limited to, violating the intellectual property rights of theCompany or a third party, failing to comply with applicable laws or other legal obligations,and/or publishing or distributing illegal material.At the termination of this Agreement, any provisions that would be expected to survivetermination by their nature shall remain in full force and effect.11) INTELLECTUAL PROPERTYYou agree that the intellectual property owned by the Company includes all copyrights,trademarks, trade secrets, patents, and other intellectual property belonging to the Company("Company IP").Subject to the limitations listed below, we hereby grant you a non-exclusive, non-transferable,revocable license to access our websites in conjunction with the Affiliate Program and use theCompany IP solely and exclusively in conjunction with identifying our company and brand on theAffiliate Site to send customers to the Affiliate links we provide. You may not modify theCompany IP in any way and you are only permitted to use the Company IP if you are an Affiliatein good standing with us.We may revoke this license at any time and if we find that you are using the Company IP in anymanner not contemplated by this Agreement, we reserve the right to terminate this Agreement.Other than as provided herein, you are not permitted to use any of the Company IP or anyconfusingly similar variation of the Company IP without our express prior written permission.This includes a restriction on using the Company IP in any domain or website name, in anykeywords or advertising, in any metatags or code, or in any way that is likely to cause consumerconfusion.Please be advised that your unauthorized use of any Company IP shall constitute unlawfulinfringement and we reserve all of our rights, including the right to pursue an infringement suitagainst you in federal court. You may be obligated to pay monetary damages or legal fees andcosts.You hereby provide us a non-exclusive license to use your name, trademarks and servicemarks ifapplicable and other business intellectual property to advertise our Affiliate Program.12) MODIFICATION & VARIATION6The Company may, from time to time and at any time, modify this Agreement. You agree thatthe Company has the right to modify this Agreement or revise anything contained herein. Youfurther agree that all modifications to this Agreement are in full force and effect immediatelyupon posting on the Website and that modifications or variations will replace any prior versionof this Agreement, unless prior versions are specifically referred to or incorporated into thelatest modification or variation of this Agreement. If we update or replace the terms of thisAgreement, we will let you know via electronic means, which may include an email. If you don'tagree to the update or replacement, you can choose to terminate this Agreement as describedbelow.a) To the extent any part or sub-part of this Agreement is held ineffective or invalid by anycourt of law, you agree that the prior, effective version of this Agreement shall beconsidered enforceable and valid to the fullest extent.b) You agree to routinely monitor this Agreement and refer to the Effective Date posted atthe top of this Agreement to note modifications or variations. You further agree to clearyour cache when doing so to avoid accessing a prior version of this Agreement.13) RELATIONSHIP OF THE PARTIESNothing contained within this Agreement shall be construed to form any partnership, jointventure, agency, franchise, or employment relationship. You are an independent contractor ofthe Company and will remain so at all times.14) ACCEPTABLE USEYou agree not to use the Affiliate Program or our Company for any unlawful purpose or anypurpose prohibited under this clause. You agree not to use the Affiliate Program in any way thatcould damage our websites, products, services, or the general business of the Company.a) You further agree not to use the Affiliate Program:I) To harass, abuse, or threaten others or otherwise violate any person's legal rights;II) To violate any intellectual property rights of the Company or any third party;III) To upload or otherwise disseminate any computer viruses or other software that maydamage the property of another;IV) To perpetrate any fraud;V) To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;VI) To publish or distribute any obscene or defamatory material;7VII) To publish or distribute any material that incites violence, hate, or discriminationtowards any group;VIII) To unlawfully gather information about others.15) AFFILIATE OBLIGATIONS & FTC COMPLIANCEYou are responsible for ensuring operation and maintenance of the Affiliate Site, includingtechnical operations, written claims, links, and accuracy of materials. You must ensure, as notedabove, that the Affiliate Site does not infringe upon the intellectual property rights of any thirdparty or otherwise violate any legal rights.We may monitor your account, as well as clicks and/or purchases coming through your account.If we determine you are not in compliance with any of these the terms of this Agreement, wehave the right to immediately terminate your participation in the Affiliate Program.We require all of our Affiliates to comply with all applicable statutes, regulations, and guidelinesset by the federal government, through the Federal Trade Commission, as well as state and localgovernments as mandated. The Federal Trade Commission requires that affiliate relationships,such as the relationship between you and the Company, be disclosed to consumers.We recommend that you seek independent legal counsel to advise you of our obligations todisclose in this manner.You are required to post a conspicuous notice on your website regarding the Affiliate Program.The notice does not have to contain the precise words as the example given below, but shouldbe similar:We engage in affiliate marketing whereby we receive funds through clicks to our affiliateprogram through this website or we receive funds through the sale of goods or services on orthrough this website. We may also accept advertising and sponsorships from commercialbusinesses or receive other forms of advertising compensation. This disclosure is intended tocomply with the US Federal Trade Commission Rules on marketing and advertising, as well asany other legal requirements which may apply.We also require you to comply with any and all applicable data privacy and security laws andregulations, including all of those which may impact your country of residence or your visitors.Such regulations include, but are not limited to, any applicable laws in the United States or theGeneral Data Protection Regulation of the European Union. We also require that you implementadequate organizational and technical measures to ensure an appropriate level of security forthe data that you process. Further, you hereby agree to comply with any requests which wemay make to you regarding compliance with the General Data Protection Regulation or requestswhich you may receive from data subjects.8If we find you are not in compliance with any of the requirements of this sub-part, we mayterminate our relationship with you at our sole and exclusive discretion.16) REVERSE ENGINEERING & SECURITYYou agree not to undertake any of the following actions:a) Reverse engineer, or attempt to reverse engineer or disassemble any code or softwarefrom or on any of our websites or services;b) Violate the security of any of our websites or services through any unauthorized access,circumvention of encryption or other security tools, data mining or interference to anyhost, user or network.17) DATA LOSSThe Company does not accept responsibility for the security of your account or content. Youagree that your participation in the Affiliate Program is at your own risk.18) INDEMNIFICATIONYou agree to defend and indemnify the Company and any of its agents (if applicable) and holdus harmless against any and all legal claims and demands, including reasonable attorney's fees,which may arise from or relate to your use or misuse of the Affiliate Program, your breach ofthis Agreement, or your conduct or actions. You agree that the Company shall be able to selectits own legal counsel and may participate in its own defense, if the Company wishes.19) SPAM POLICYYou are strictly prohibited from using the Affiliate Program for illegal spam activities, includinggathering email addresses and personal information from others or sending any masscommercial emails.20) ENTIRE AGREEMENTThis Agreement constitutes the entire understanding between the Parties with respect to theAffiliate Program. This Agreement supersedes and replaces all prior or contemporaneousagreements or understandings, written or oral.21) SERVICE INTERRUPTIONS9The Company may need to interrupt your access to the Affiliate Program to performmaintenance or emergency services on a scheduled or unscheduled basis. You agree that youraccess may be affected by unanticipated or unscheduled downtime, for any reason, but that theCompany shall have no liability for any damage or loss caused as a result of such downtime.22) NO WARRANTIESYou agree that your use of the Affiliate Program is at your sole and exclusive risk and that anyservices provided by us are on an "As Is" basis. The Company hereby expressly disclaims any andall express or implied warranties of any kind, including, but not limited to the implied warrantyof fitness for a particular purpose and the implied warranty of merchantability. The Companymakes no warranties that the Affiliate Program will meet your needs or that it will beuninterrupted, error-free, or secure. The Company also makes no warranties as to the reliabilityor accuracy of any information. You agree that any damage that may occur to you, through yourcomputer system, or as a result of loss of your data from your use of the Affiliate Program isyour sole responsibility and that the Company is not liable for any such damage or loss.23) LIMITATION ON LIABILITYThe Company is not liable for any damages that may occur to you as a result of yourparticipation in Affiliate Program, to the fullest extent permitted by law. The maximum liabilityof the Company arising from or relating to this Agreement is limited one hundred ($100) USDollars. This section applies to any and all claims by you, including, but not limited to, lostprofits or revenues, consequential or punitive damages, negligence, strict liability, fraud, or tortsof any kind.24) GENERAL PROVISIONS:A) LANGUAGE: All communications made or notices given pursuant to this Agreement shallbe in the English language.B) JURISDICTION, VENUE & CHOICE OF LAW: Through your participation in the AffiliateProgram, you agree that Ohio shall govern any matter or dispute relating to or arising outof this Agreement, as well as any dispute of any kind that may arise between you and theCompany, with the exception of its conflict of law provisions. In case any litigationspecifically permitted under this Agreement is initiated, the Parties agree to submit to thepersonal jurisdiction of the state and federal courts of the following county: HamiltonCounty, Ohio. The Parties agree that this choice of law, venue, and jurisdiction provision isnot permissive, but rather mandatory in nature. You hereby waive the right to anyobjection of venue, including assertion of the doctrine of forum non conveniens or similardoctrine.10C) ARBITRATION: In case of a dispute between the Parties relating to or arising out of thisAgreement, the Parties shall first attempt to resolve the dispute personally and in goodfaith. If these personal resolution attempts fail, the Parties shall then submit the dispute tobinding arbitration. The arbitration shall be conducted in the following county: HamiltonCounty. The arbitration shall be conducted by a single arbitrator, and such arbitrator shallhave no authority to add Parties, vary the provisions of this Agreement, award punitivedamages, or certify a class. The arbitrator shall be bound by applicable and governingFederal law as well as the law of Ohio. Each Party shall pay their own costs and fees. Claimsnecessitating arbitration under this section include, but are not limited to: contract claims,tort claims, claims based on Federal and state law, and claims based on local laws,ordinances, statutes or regulations. Intellectual property claims by the Company will not besubject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, inagreement with this sub-part of this Agreement, waive any rights they may have to a jurytrial in regard to arbitral claims.D) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned,sold, leased or otherwise transferred in whole or part by you. Should this Agreement, orthe rights granted hereunder, by assigned, sold, leased or otherwise transferred by theCompany, the rights and liabilities of the Company will bind and inure to any assignees,administrators, successors, and executors.E) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceableby a court of law or competent arbitrator, the remaining parts and sub-parts will beenforced to the maximum extent possible. In such condition, the remainder of thisAgreement shall continue in full force.F) NO WAIVER: In the event that we fail to enforce any provision of this Agreement, thisshall not constitute a waiver of any future enforcement of that provision or of any otherprovision. Waiver of any part or sub-part of this Agreement will not constitute a waiver ofany other part or sub-part.G) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under thisAgreement are for convenience and organization, only. Headings shall not affect themeaning of any provisions of this Agreement.H) FORCE MAJEURE: The Company is not liable for any failure to perform due to causesbeyond its reasonable control including, but not limited to, acts of God, acts of civilauthorities, acts of military authorities, riots, embargoes, acts of nature and naturaldisasters, and other acts which may be due to unforeseen circumstances.I) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permittedto both Parties under this Agreement, including e-mail or fax. For any questions orconcerns, please email us at the following address: info@duncantoys.com.